A Petition without a Petitioner is a Myth

CHARLOTTE5-01It is an abuse of language to even say that a petition is anonymous. Before we come to the veracity of this statement, however, let’s, first of all, distinguish between 2 situations: (1) where the investigative machinery involved in processing a petition is empowered to self-initiate its own investigative processes; and (2) where the investigative machinery is not empowered to self-initiate its own processes.

Suo Sponte

In the case where the investigative machinery is empowered to self-initiate its own investigative processes, it would not matter who initiates the process. That is because the machinery may do so by itself anyways. The draftswoman  must have a reason for not excluding the machinery. She, probably, thinks it doesn’t matter who starts it. For example, the police may, by themselves, commence investigation into a crime upon reasonable suspicion. They do not need a complainant in order to do so. For this reason, lack of a complainant, ordinarily, cannot be a defence to a criminal charge. It doesn’t matter who brings the plaint. We may, therefore, make a claim that the ascertainment of existence of an initiator is not necessary where the investigative machinery is empowered to self-initiate its own processes.

Indeed, the question of self-initiation, was at the heart of the difficult contention in the Anane case. In that case the issue was whether CHRAJ could, on its own, commence an investigation even without an identifiable complainant or petitioner. Those who believed that CHRAJ could, did so because they believed that CHRAJ cannot be useful unless it be given the power to invoke its own jurisdiction. As it turned out, the courts thought otherwise – CHRAJ could still be useful without having the power to self-initiate investigations under Article 218(a). It is therefore necessary to state, resoundingly, that the Anane case was never about anonymity of the petitioner. It has no direct application in the present case.

The second situation is where the machinery is not empowered to self-initiate its processes. In this situation, the question ‘who initiates the process’ becomes indispensable. It appears that the initiator’s existence must always be ascertained in order to kick-start the process. This is because, here (unlike the first situation), it is not any person who may initiate the proceedings. And, at least, we know that, here, the investigating machinery in question or its components are such persons who are not clothed with capacity to initiate the proceedings. The draftswoman must have a reason for this exclusion. She, probably, thinks it matters who brings the petition. So, for example, our courts do not have the power to self-initiate proceedings. For this reason, lack of an existing plaintiff is always a valid defence to court proceedings. It matters who brings the plaint. We may, therefore, make a second claim that the ascertainment of the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.

But, even this second situation (where the ascertainment of the initiator is required), too, one needs to make another distinction between 2 sub-situations: (a) where the initiator exists and is disclosed; and (b) where the initiator exist but is not disclosed. Here, most adjudicatory bodies may allow a situation where the initiator, though existing, may not have her identity disclosed. This may be for a number of reason, e.g. where such disclosure may expose the initiator to some danger. But even here, the adjudicator would always have to ascertain the existence of the initiator. Therefore, the non-disclosure of an initiator who, in fact exists, does not take away from this second claim.

Article 146

Having set out the background, we may now have a discussion on the issue whether a “petition” which seeks the removal of a Justice from office (in this case, the chairperson of the Electoral Commission) under Article 146 of the Constitution, requires a petitioner. To be able to resolve this issue, it appears that one would have to, first, find out whether the investigating machinery (or its components) may self-initiate such removal proceedings.

Let’s note that the investigating machinery here includes, (1) the President (including the Vice President), (2) the Chief Justice, (3) any of the Justice of the Superior Court, (4) the Council of State and (5) the Judicial Council. Ordinarily, therefore, none of these persons, acting in such capacities, may initiate the process. Note, however, that the relevant component of the machinery here is the President. Therefore, the real question is whether the President may self-initiate the removal process.

At least, the tenor of Article 146 makes it very doubtful if the President could self-initiate the impeachment of a Justice of the superior court (and by extension, as in this case, the Chairperson of the EC). This is what 146(3) says:

“If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”

In other words, unless a President “receives” a petition, the process cannot start. Obviously, the President cannot “receive” a petition from herself. This, therefore, may give us a deep insight into whether the ascertainment of the initiator is necessary. In this regard, we may call in aid our second claim which states that “the existence of an initiator is necessary where the investigating machinery is not empowered to self-initiate its own processes.” Accordingly, we may say that the ascertainment of the existence of the initiator is a prerequisite to the competence of the petition.

The Fable

But, I made an initial claim that “it is an abuse of language to even say that a petition is anonymous.” The basis of that claim is as follows:

The Oxford law dictionary defines a “petition” a “written application for a legal remedy or relief that is only available if statute or rules of procedure permit it. The dictionary goes on to give examples of petitions. It lists “a petition for divorce, a bankruptcy petition, an election petition, or a petition for winding up a company …” These examples may be instructive in helping us answer the question, may a petition be without a petitioner? In other words, may a divorce be sought without an existing petitioner? How about election petition? Bankruptcy? Probably not.

Secondly, the Black’s law dictionary, defines a petition as a “written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favor, privilege, or license.” This definition is apposite as relates directly to the historical antecedent of “petition.”

Under medieval English law and ‘forms of action’, a person usually petitions the King through the Lord Chancellor or the Exchequer for a “favour”, a “licence” or a “privilege.” This is in contradistinction with a “writ” which was the prescribed medium for asserting a “right.” A good example is where a person may petition the King for leave to be able to sue the King. This is because no one has the right to sue the King. You need the King’s “fiat” to be able to sue him. Indeed, those who are familiar with our legal history of law practice would know that this concept sipped into our law, where a person who wishes to sue the State had to first issue a process known as a “petition of right’ for the grant of a “fiat” in order to be able to issue a writ against the State. Let me, however, mention that this requirement is now abolished by Article 293(1) of the Constitution. So, now, you may sue the State without first issuing a ‘petition of right’.

This historical analysis may not be conclusive on the matter. However, it helps one to note that seeking a “privilege”, a “licence” or a “favour” necessarily requires that the grantor of such “privilege”, “licence” or “favour” knows the person who seeks and in respect of whom he would grant such “privilege”, “licence” or “favour”. Therefore, both definitions, when taken critically and within the proper context, makes the concept of “anonymous petition” rather fabulous, awkward and a little too disturbing at law.

For these reasons, I think, a petition, unless otherwise expressly excepted, must have a petitioner.

The Problems that Face Legal Education in Ghana are not Legalities

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Events of the past weeks have led some to believe that the problems facing legal education in Ghana are caused by non-compliance with laws. That belief is unfounded. In fact, legality is not even one of the problems. The real problems facing legal education in Ghana today include expired approach to teaching, poor teacher-student ratio, poor access to trending learning materials, weak research base and unworkable rules on admission to the bar. All these lead to a very hectic, costly, almost-oppressive and highly unpredictable legal education process.

Efforts at Solution

Varied efforts have been made by the General Legal Council (GLC) and other stakeholders to help solve the problems. These efforts include the construction of a new law school building at the University of Ghana (UG), the renovation of the Ghana School of Law (GSL) facility in Makola, plans to build an ultramodern GSL training facility at Legon, prohibition of non-PhD-holders from teaching law in UG, recruitment of more lecturers at both UG and GSL, etc. However, the most dramatic effort is what may be called ‘democratisation of the LL.B. program’. This saw a paradigm shift from the policy which gave exclusive mandate to UG to award the LL.B. degree to the current situation where almost every degree-awarding institution may.

However, the democratisation process did not come without its own attending challenges. It has seen more LL.B. degree holders willing to be enrolled at the bar than the GSL could admit for professional training. To solve this problem, the GLC had to increase admissions to the GLS from a little over 50 in the early 2000s to about 250 last year. This move also came with the creation, in 2011, of 2 outstation campuses of the GSL, one in Kumasi and another in eastern Accra. At a point, the GSL also used a quota system of admission, where each LL.B. awarding university was given a quota in respect of the number of their LLB graduates to send to the GSL.

Automatic Admission

From this background, it may be pretty much obvious that the problems facing legal education has grown in genre and scope, giving birth to all manner of activists trying furiously, though in good faith, to fight for change. It is, however, even more obvious that the problem that concerns the activists most is not any of the above, but rather one that has to do with the number of persons that may be admitted to the bar each year. This claim is evidenced by events characterising this year’s GSL admission process, where activists have asked that all the over 3,000 LL.B. holders in Ghana be admitted to the GSL without any further criteria for scrutiny.

There may be many arguments in favour or against the automatic admission campaign. However, only a very few persons may deny the fact that the campaign is mono-dimensional as it seems to have no regard for the other more serious problems facing legal education in the country, e.g., quality of training. Indeed, one may even say that the automatic admission campaign bears strong features of fundamentalism and overly-generous obsession with high numbers and only diverts attention from the more serious problems.

Deinstitutionalisation

Another call that is often made towards the resolution of the problem is one which calls for deinstitutionalisation of the professional bar training program. This call would see the abolishing of the GSL and the reconstitution of the GLC’s Board of Legal Education into an examination (rather than a training) body. Of course, this appears to be a more progressive approach when all is said and done. The question, however, is how the deinstitutionalisation approach would resolve the number problem, which it is often proffered to solve?

In answering this question, the apostles of deinstitutionalisation would say that the teeming number of universities running law programs would develop the capacity to absorb and handle the numbers. This is true; but only true if one assumes that the law student’s only and ultimate interest is having legal training for the sake of it. The argument hardly speaks to the issue of numbers when taken in its proper context, which is that the average law student’s ultimate interest is to become a lawyer and not just to have legal training. To become a lawyer, the law student must move beyond professional legal training (to be offered by the universities) to being enrolled at the bar. Therefore, while the various universities may have the capacity to offer professional legal training to the teeming number of persons seeking to become lawyers, they have no power whatsoever to determine which or how many of their many graduates end up becoming lawyers.

The power to admit persons to the bar vests solely with the GLC. This also means that it is only the GLC (not the universities) that could resolve the number issue. It also means that no serious progress could be made in respect of numbers unless the GLC is convinced that Ghana needs more than the current 250 new lawyers being admitted in a year. From this background, therefore, the deinstitutionalisation approach, like its predecessor democratisation of LL.B. approach, unless coupled with a deliberate and concerted effort at convincing the GLC to increase the number of persons admitted to the bar, would merely portend another situation where an army of “trained lawyers” would wait in agony and frustration, perhaps, forever to be admitted to the bar.

Way Forward

Going forward, it behoves stakeholder of legal education in Ghana to take steps to have a comprehensive dialogue leading to practicable proposals to the GLC in respect of the following:

  1. Preferred teaching approach in law schools;
  2. Minimum qualification for law teachers;
  3. Minimum qualification for admission to the LL.B. program;
  4. Accreditation criteria for institutions that will award LL.B. degrees;
  5. Deinstitutionalisation of professional law training program;
  6. Ghana’s need for lawyers, leading to an objectively determined number of lawyers to be admitted to the bar each year for the next 10 years;
  7. Effective pupillage program; and
  8. Cost of legal education.

The stakeholders to this dialogue should include the following:

  1. The General Legal Council,
  2. The Ghana Bar Association,
  3. The National Accreditation Board,
  4. Deans and directors of law faculties and schools;
  5. The National Union of Ghana Students (and law student associations),
  6. Law teachers’ associations, and
  7. Proprietors of law schools.

Conclusion

In all, it may not be false to say that the current agitation over the number of persons to be admitted to the Ghana bar would see no end until and unless the GLC is convinced with credible evidence that Ghana needs more lawyers than the current rate of enrolment. Such evidence, sure, would not come from dry legal arguments of doubtful integrity. Such evidence may only be had from sound economic, social and political policy analysis and considerations.

Of Asare v GLC: Our Veritable Octopus Supreme Court

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Our Supreme Court has done it again! It seems to have behaved like the proverbial ‘veritable octopus,’ stretching its tentacles to assume jurisdiction over a matter which is clearly out of its original exclusive jurisdiction. As if that was not enough, the Court has given a judgement that has successfully entrenched the common-held view that the honourable Court is in a dire need of consistency and judicial humility.

This note seeks to show that the Supreme Court did not have jurisdiction over the Asare v General Legal Counsel & Ors in the first place.

Judicial Review Generally

Article 2 of the 1992 Constitution codifies the doctrine of judicial review as established by the landmark case of Marbury v. Madison (1803). In that case, Justice Marshall stated that:

“If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

The essence of this statement is that the Constitution is the sole standard for exercising a supreme court’s power of judicial review. It is exactly this doctrine that is codified in Article 2 of our Constitution.

Judicial Review in Ghana

So, Article 2(1) says that:

“A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

From this provision one may glean out the following elements, which must be satisfied in order to successfully invoke the Supreme Court’s Article 2 jurisdiction. In other words, for a plaintiff to invoke the Article 2 jurisdiction of the Supreme Court, she must show the following:

  1. That there is an allegation of violation;
  2. That that allegation of violation is in the form of:
    • A contravention, or
    • An inconsistency;
  3. That the alleged violation stems from at least 1 of 2 principal sources, namely:
    • From an enactment; or
    • From a person.
  4. That where the alleged violation stems from an enactment, it is either:
    • From the content of the enactment (without more); or
    • From a conduct done under or pursuant to the authority of an enactment.
  5. That where the alleged violation stems from a person, it is either through:
    • A person’s action; or
    • A person’s inaction.
  6. That whatever nature the alleged violation may take from 1 to 5, it should be a violation of the Constitution and nothing else.

In fact, that is the reason why Article 2 claims must always allege an unconstitutionality – meaning the constitution (and nothing else) is the sole standard of evaluation.

Un-constitutionality

It is true that any illegal act or omission may also be a violation of one of the many principles in the Constitution, but it would be an abuse of language and, of course, the concept of judicial review to suggest that a person who steals my iPhone has committed an unconstitutionality, having violated my right to property under Article 20 of the Constitution.

It is exactly the prevention of this possible abuse (of every legal wrong coming to the Supreme Court for judicial review) that the Supreme Court itself insists strongly in a long line of cases that where the Supreme Court has concurrent jurisdiction with another court over a matter, the Supreme Court would relinquish jurisdiction to that other court. In fact, it is for this reason that the Supreme Court’s Article 2 jurisdiction called “exclusive original jurisdiction.”

Asare v GLC Jurisdiction

Now, the question is this: what is the dominant feature of the violation which the Plaintiff in Asare v GLC & Ors. alleged? To all intents and purposes, the allegation is primarily one which says that the defendants have acted, are still acting and, unless restrained, would continue to act outside their enabling Act, Act 32, or its subsidiary legislation, L.I. 1296. And, even though such violations may derivatively result in an inconsistency or even a contravention of a principle in the Constitution, it is an abuse of the term ‘judicial review’ to suggest that that act or omission is unconstitutional.

In other words, the Supreme Court, as a matter law and in accordance with its own established jurisprudence, did not have and should not have assumed an exclusive original jurisdiction over the plaint. The plaint should have been referred to the High Court which has original jurisdiction to determine such administrative (rather than constitutional) matters.

Conclusion

Until and unless the Honourable Supreme Court begins to take some of these jurisdictional issues more seriously, it would continue to exude an air of inconsistency and judicial tyranny, while at the same time weakening not just itself, but also all the Courts and other administrative bodies below it.

Of Dual Citizenship and Allegiance: Emotive or Juridical

12715-Dualnationalitypassport-1342092104-492-640x480Apparently, there is a raging social media debate on Article 8 of the Constitution. That Article allows Ghanaians to be dual citizens. However, it bars dual citizens from holding certain public offices. For example, a dual citizen cannot become President or Vice, Ambassador or High Commissioner, Member of Parliament, Inspector-General of Police, Chief of Defence Staff, etc.

Dual Citizen

A dual citizen is a person who is a citizen of two countries. Within this context, a Ghanaian is a dual citizen if he holds the citizenship of a country in addition to that of Ghana at the same time. The beginning point of the discussion (which is also the basic rule) is that every person automatically owes allegiance to the country of which he is a citizen. This also means that a dual citizen owes allegiance to two (or more) countries. At the core of the discussion, therefore, is the question of ‘allegiance.’ Consequently, one’s understanding of ‘allegiance’ within this context is very fundamental to the discussion. I’ll be explaining ‘allegiance’ very soon; but before that let me just quickly scope out the debate.

The Debate Sides

One side of the discussion – the inclusion view – argues that there is no real gain in barring dual citizens from holding these public offices. To them, dual citizens, if allowed to hold these key offices, may well be the solution to Ghana’s endless train of problems. This is because duals have enormous talents and expertise which they could bring to bear on those offices. “Without occupying those offices,” the argument goes, “dual citizens can’t contribute sufficiently to solving Ghana’s problems.” Based on this, the inclusionists accuse the exclusionists as inward-looking folks who fear competition.

The other side of the debate – the exclusion view – defends the bar as very helpful in preventing treachery. To the exclusionists, a mono-citizen cannot or is less likely to betray his country than a dual since he owes allegiance to only one sovereign. To the treachery argument in particular, the inclusionists would retort that in a country where poverty is rife, a mono could more easily betray her country than a dual. Indeed, that may be very true, considering the way boys are hungry these days, they could sell anything. The exclusionists’ pushback is that: well, if you think dual citizenship doesn’t have a downside, then, single citizenship would also not have an advantage; so, nationality as a whole shouldn’t matter in getting people into public offices – let’s just throw all these nationality issues away and look for competence only, even for the presidency!

I, myself, am confused as to which side of the debate to belong. Therefore, the purpose of this short note is not to suggest, propose or indicate, even remotely, the better of the two sides. I only wish to, in my own small way, make the debate a little more informed.

Allegiance not an Emotive Concept

Okay; as one could already observe from these snippets of arguments, both sides of the discussion have been very creative, committed and forceful in making their case. Interestingly, these snippets of arguments also tell us that their forcefulness, though admirable, is premised on an honest misconstruction of the most critical element in the discussion – ‘allegiance.’ They seem to give ‘allegiance’ an emotive meaning only. To them, allegiance is the feeling of loyalty, fidelity or faithfulness towards a country. So, they often use football game to illustrate their arguments whether for or against. They ask questions like: how would Milovan Rajevac feel while coaching Ghana in a football match between Ghana and his country, Serbia (I think, I saw this one in the Asare v A-G case or so)? They also would ask – how did Jerome Boateng feel about playing for Germany against Ghana?

Indeed, how a person feels in these situations matters in measuring their output and commitment. However, I’m not particularly sure how that feeling translates into how ‘allegiance’ is determined in this context. I’m encouraged to say that ‘allegiance’ as used within the context of citizenship is too serious a matter to be left to feelings and emotions; not least because there is no art to find a man’s feeling on his face.

Allegiance is Juridical

‘Allegiance’ go way beyond these emotive attributes. It doesn’t simply connote a feeling of indebtedness, fidelity or loyalty. Rather, the word carries with it a bundle of well-defined legal incidents and consequences. It usually entails defined duties of a citizen to her country. It equally entails the rights of a country to punish the citizen should she fail in performing those duties. It speaks directly to the question of State protection to citizens as well. At law, it is what a citizen gives in return for the protection that her country provides her.

For instance, a citizen has a duty to defend the constitution of his country and, usually, to defend the government which is, for the time being, in place. On the other hand, the country has the right to commit the citizen for treason and punish her as such should she do anything that betrays this duty. It goes without saying, too, generally, that a non-citizen cannot commit treason – he doesn’t owe allegiance to the sovereign in question. This is a well-established rule under both domestic and international law. To this end, a person’s allegiance to a country is determined by such objective (rather than subjective or emotive) criteria as citizenship, domicile, etc.

So, in Carlisle v. US (1872) for example, a group of aliens were manufacturing and selling gunpowder to the rebel Confederate army to enable them overthrow the federal government. These guys were doing pure business. They didn’t have any special feeling towards any of the waring parties. As a matter of fact, they could and were ready to sell to both sides. The US Supreme Court held as follows:

“He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof.” 

Of a more current and comprehensive help is the English case of Joyce v DPP (1946). Here the accused person, an American citizen who also held British passport was caught translating English news for the Nazi during World War II. No one knew his feelings. The key issue that came before the House of Lords was whether a person who held a passport (but who is merely a naturalised citizen) owes allegiance to His Majesty, the King of England. Answering this question, Lord Jowitt LC said:

“In these circumstances, I am clearly of the opinion that so long as he holds the passport he is within the meaning of the statute a man who, if he is adherent to the King’s enemies in the realm or elsewhere commits an act of treason.”

Joyce v DPP is also the authority for saying that passport is conclusive evidence of allegiance; so that an MP who holds a passport of another country owes allegiance to that country, for which reason she should be removed from Parliament and punished for perjury.

From these 2 cases alone (and there are a litany), I’ve found that ‘allegiance’ is a juridical (rather than emotive) construct. It’s not determined by the subjective criteria of how the person really feels about a country, but rather by clearly stated objective criteria of facts, law or facts mixed with law – citizenship, holding of passport, domicile, etc, – all of which entitles a person to the protection of the sovereign. This is no brainer, the fact that a person feels great about Russia doesn’t mean that he owes allegiance to Russia. And the fact that you’re Gambian doesn’t also mean that you feel love for the Gambia; but you’re held at law, conclusively, to owe allegiance to the Gambia. How, then, may one justify the claim that ‘allegiance’ is an emotive concept?

Countries and Dual Citizenship

A dual citizen may be likened to a servant of two masters. His acts don’t really affect him. They more affect the relationship between the two masters. It also has the potential of limiting what each master may do in respect of this dual-servant. Masters don’t like that. Because of this, even the most liberal countries of the world look at dual citizenship with suspicion. It has always been the case. So, the US Department of State, for instance, would say “the U.S. Government does not encourage dual nationality … Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other.” In fact, other countries don’t allow it at all.

Illustration: What if your energy minister was a dual citizen – Ghanaian and American; and, then, the US (as it usually does) bars its citizens from dealing with the GNPC and Ghana Gas Limited. This, obviously, would have nothing to do with how the minister feels about Ghana or the US. Ghana would have to choose between extraditing the minister to the US (and fail in its primary duty to protect its citizen) or keep him here to continue working with GNPC (and face international sanctions from the US). This is just one of the ways in which dual citizenship may frustrate the relationship between two countries.

Okay, I have to go now. Having said this, I believe the debate could proceed.

WHY LAWYERS CAN’T ADVERTISE IN 21ST CENTURY GHANA

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It is outrightly unlawful for a lawyer to inform the pubic of his previous successes in his professional practice with the aim of attracting briefs in the future. This is because Rule 2 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613) prohibits lawyers from touting, advertising or otherwise doing anything that may be seen “as calculated to attract business unfairly.”

Today, many consider the Rule as a senseless piece of legislation which is, “archaic” and “greatly inimical to the development of this country” in the sense that it “forces all lawyers to scramble for space under the wings of old and established law firms” and deprives citizens of the “right to know about the law firms available and the kinds of services they offered.

Interestingly, while some call on the incoming Chief Justice, Her Ladyship, Justice Sophia Akuffo, to “break this old curse,” the former President of the African Court on Human and Peoples’ Rights rather boldly announced at his vetting in Parliament how “distasteful” she finds the campaign against the rule. Clearly, if this rule would be scrapped, it definitely won’t come from the General Legal Council of which Her Ladyship would be head for the next two or so years.

But, what at all is the basis or essence of this rule? Well, one could not understand the Rule’s utility unless we wind back our minds to pre-medieval England; that is to say, the years immediately preceding 1400 AD.

A great point to approach history, they say, is to begin from the known to the unknown. Most of us are familiar with the chorister’s or the academic robe. The main difference between these robes and a lawyer’s is that the later has a stupid piece of violin-shaped cloth attached to the back of its left shoulders with a long silly strap running along the left breast down to the feet. The former robes don’t. That piece of cloth at the shoulders is cut into a pair of cute little sacks. These sacks used to be the money sack for lawyers – one for silver coins the other for gold. It’s actually called the “money bag.”

The theory behind this mysterious pair of sacks was that law practice was purely a noble selfless public service profession. It was neither for money nor for profit. Because of this, lawyers could never charge fees. In fact, it is said that “the gentlemanly barrister would not lower himself to ask clients for money.” Clients only made voluntary ex gratia donations which they surreptitiously dropped into these sacks. Remember, the pair of sacks hang loosely behind him; meaning he could not feel, know or be influenced by how much a client dropped in. Money was completely irrelevant!

Now the catch: since professional law practice for most part of its life was noble and not for profit, open competition was never a sensible thing to do, entertain let alone encourage. Therefore, it made sense to prohibit touting and advertising among lawyers. As a matter of fact, advertising or touting was as ignoble, base and unprofessional as asking clients for money. This is the only (if not the main) reason why Rule 2 exists in Ghana in 2017.

Assuming (without admitting) that this medieval reason for the Rule is still valid in this IT age, the question, however, would be: why does the General Legal Council find it noble for lawyers to now lower themselves and ask clients for money but ignoble for them to advertise their services? Perhaps, the answer to this question would never come.

6 WEEKS: THAT ONE TOO, IS IT MATERNITY LEAVE?

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I had a discussion with my friends on Facebook yesterday. The discussion was over the news that Rwanda’s Parliament has reduced the minimum period of maternity leave (ML). The general sentiments I gleaned from the comments on the post which broadcast the news ranged from mild disapproval, through shock to extreme anger. Of course, that is understandable – rights may be enlarged (not abridged).

Most of the commenters on the post seemed to hold the view that longer ML is mainly beneficial to the mother involved. Reducing it, therefore, is to her disadvantage; and should not be countenanced. I made a few comments under the post but lost track of the discussion due to the speed at which the comments came raining in (and, probably, even due more the bread-n-butter issues at hand at the time). So, I decided to rather do a blog skirting my views on the matter.

Let me begin by saying that the advantages of ML cannot be overemphasised. And, on the question of who, between the employer and the mother, benefits most from longer maternity leave, I seem to have a slightly different view. Having managed workers for some time now, I have no doubt whatsoever in my mind that ML is even more beneficial to the employer than to the mother involved. Trust me, there is no point having “at work” a worker 98% of whose already-tired attention is on her child several miles away back home.

However, we will be either arguing fundamentalism or be a little too naive to base our analysis of the issue of ML duration on the above dimension only. I think the other critical dimension to the issue is the practical challenge that attends the private small-scale investor-entrepreneur employer, whose primary focus is to make returns on her already small capital within the short term in a wobbly economy like ours.

The primary aim of women’s right activists like us is to afford as much dignity and relief as possible for mothers at all times. But, the entrepreneur, particularly those in our highly perilous third world economies characterised with massive unemployment rates, is so much unlike us. He is faced with 2 real economic options: to either (1) employ a male who will work around the clock all year for many years; or (2) employ a female who will take 6 months ML in every 2 years on the average. Starkly faced with this reality, a private employer (even with substantial women’s rights acumen, would not find a difficulty in making a choice – employ a male worker.

So, if Rwanda, which has the most female-dominated Parliament in the world, decides to make a law reducing maternity leave from 13 weeks to 6 weeks (as I understand it), they probably are trying to solve another serious problem – female unemployment.

Workplace crèches and nurseries are often proposed as one of the solutions to the problem. That is cool, because the mother is will focus more on work, knowing that her child is just steps away. But that, too, would hardly be a prudent economic option for our small-scale employer employing 3 to 5 women who may not all be breastfeeding at the same time.

This brings to mind one other point – paternity leave (PL): You see, one of the great but less-cited advantages of PL is that it leaves the employer with no real advantage of employing a man over a woman, all things being equal. Indeed, PL does check gender discrimination in employment situations 🙂

Photo credit: Golda

MUSING MARXISM: PUBLIC ELECTIONS

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In my previous note on this issue, I mused in support of the claim that that a constitution does not represent the true aspirations, values or ideals (ideas) of the whole of the people as we are often made to believe. I explained that a constitution is, rather, a bundle of the ideas of the ruling class of the time. A constitution is also a parochial arrangement between and among the ruling class only.

That arrangement expressly excludes the ruled, the masses, from the government of the polity. In order to pacify the masses (for excluding them from government), the ruling class invented a mechanism called ‘regular election,’ where the masses are allowed to choose one ruling class from the others. Like a typical idea of the ruling class, regular election is constitutionalised.

In this note, I will use Vladimir Lenin’s analytic to explain why election is a sham just as the constitution which contains it.

According to Lenin, “the oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them.” By this statement, one may notice that Lenin divides society into 2 classes: (a) the oppressor-ruler-politician; and (b) the oppressed-ruled-voter. This division, itself, is in accordance with classical Marxist theory which finds an ongoing struggle between the two classes.

If Lenin’s statement is anything to go by, then, one may say that any person or group of persons who, habitually, put themselves up for election to a public office fall within the oppressor class. By this stretch, one may notice, too, that political parties and their leader, whether in power or in opposition, are oppressors; the only difference being that those in power are oppressors at present while those in opposition, are oppressors in waiting.

Coming home, there are 2 main political parties in our polity – the NDC and the NPP. Both parties have ruled the polity and have, at all material times, maintained their readiness to rule. By this, we may say that the two parties have attained the minimum level of harbituality required to be classified as a part of the oppressing class – the NDC at present and the NPP in waiting.

So, once every four years, we are allowed by our Constitution to, through election, decide which of the two divisions of oppressing class, the NPP or the NDC, is to represent and repress us, the people, for the next four years.

RAMADAN AND THE LEGAL MEANING OF ‘VOID’: THEORY VERSUS FUNCTIONALITY (PART 1)

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A. BACKGROUND

Having omitted in 2014 to expressly seek the deletion of what has come to be known as the ‘NHIS names’ from the voters register, the Plaintiffs in the Ramadan case returned to the Supreme Court (the ‘Court’) earlier this year, election year, to complete what they began. This time, they expressly asked the court to, among others, either set aside the entire voters register as void; or in the alternative make “an order compelling the Electoral Commission to audit the current register of voters through the validation of the registration of each person currently on the register … [and] to delete the names of unqualified persons …” By ‘unqualified persons’, I believe, the Plaintiffs mean person who registered with the NHIS cards.

In this two-part article, I will offer a defence to the decision of the Supreme Court in the Ramadan case refusing to order the automatic deletion of NHIS names from the voters register. In doing this, I will attempt to foil the attacks that have been variously mounted against the decision. Particularly, I will conclude that (1) under our Constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, (2) public law (like private law) does, indeed, admit of the the concept of ‘voidable.’

B. THE ‘AUTO VIEW’

A law is unconstitutional if it is found to be inconsistent with any provision of the Constitution. According to our Constitution, such a law, “to the extent of the inconsistency [is] void.” Ordinarily, if a thing is void, then, it is ineffectual, it is nugatory, it has no legal or binding force. Therefore, by the very provision of the Constitution, particularly Article 1(2), any law which is unconstitutional is also automatically void ab initio.

By asking the court for that relief, therefore, the Plaintiffs were labouring under the understanding that everything which is void is void ab initio. The consequence of that understanding is that the relevant law as well as every act that is done in pursuance of such a law is deemed as though it was never done. It never was in the eyes of the law. Such an act is incurably bad and cannot yield any fruit whatsoever. After all (and as most classical lawyers would insist), “you cannot put something on nothing and expect it to stand” (much apologies to Macfoy v. U.A.C. (1962) and its Ghanaian offspring, Mosi v Bagyina (1963)). For the purposes of simplicity, I will refer to this understanding of ‘void’ as the ‘auto view’, not the least because it assumes that an act which is made under a law which is subsequently declared void is also void automatically.

Going by the auto view, persons who were registered by the EC using NHIS cards were never registered. In the eyes of the law, they are not on the register, right from the day of their purported registration. Deleting them, therefore, is a natural consequence.

The Court however took a view other than the auto view. The Court refused to grant the Plaintiffs that relief. This is what Justice Gbadegbe, through whom the entire Court spoke, said:

“The said registrations were conducted under CI 72, which was the applicable legislation under which eligible citizens were registered before the 2012 elections. As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of [NHIS] cards should not automatically render them void.”

In other words, the court does not believe that an act done pursuant to an unconstitutional law is necessarily and automatically void. It is exactly this position of the Court which brings anguish to the Plaintiffs and their fans. It is also exactly this holding that has caused a second round of rumbling in the law circles.

For example, Mr. Akoto Ampaw and Prof Kwasi Prempeh, writing jointly, have described the Court’s position as “profoundly extraordinary and deeply troubling.” To support their accusation, the two gentlemen, unfortunately, conflated Articles 1 and 2 of the Constitution and argued as follows:

“If the Constitution is the supreme law of Ghana; and if it lies within the exclusive province of the Supreme Court to declare that a law is unconstitutional; then, a law declared to be unconstitutional by the Supreme Court, is definitively void and, therefore, of no legal effect.”

As if that was not enough, the two gentlemen went further to make an extraordinarily-large claim. They find it “fanciful” that a Court would import a private law concept of ‘voidable’ into the realms of public law. Further, they assert that “[t]he concept of voidability is a concept known to contract law but completely unknown to constitutional law.”

From this, we may deduce that the auto view rest on two pillars, namely (1) under our Constitution, an act (including its consequences) is necessarily and automatically void if the law under which it was done becomes void; and (2) public law does not admit the concept of ‘voidable.’

C. THE CHECK

I wish to run a legal-validity check on each of these pillars. In other words, I will be arguing, first, that under our constitution, an act or its consequences are not necessarily or automatically void even if the law under which they were done becomes void; and, second, that public law does, indeed, admit of the concept of ‘voidable’.

  1. The Constitution and “Void”

The beginning point of this section of the argument is that there is a difference between a law and the act which is done under the law. The drafters of the Constitution knew this too well. That is, perhaps, why they created separate Articles for them. Article 1 deals with “law” only and is placed under the scope called the ‘Supremacy of the Constitution” (see the marginal note). Article 2, on the other hand, deals with both “laws” and “acts” that are done, whether in pursuance of a law (intra vires) or without legal backing (ultra vires). Article 2, unlike Article 1, deals with ‘Enforcement of the Constitution’ (see marginal note).

By this, we may also say that the drafters of the Constitution know pretty well that proclaiming the supremacy of the Constitution is one thing and enforcing it another. The former is theoretical and desirable, requiring nothing more than a “declaration”, while the latter is functional and requires practicable “orders”. So, the relevant portion of Article 1 says that:

“The Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution should, to the extent of the inconsistency, be void.” (emphasis mine)

Here, we would notice that the provision contains the word “void” and says nothing about an act. On the other hand, however, the relevant portion of Article 2 says that:

 “A person who alleges that (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

Note that this provision, which deals with ‘acts’ says nothing about ‘void.’ Rather it commands the Court to make a “declaration” to the effect that the act or law in question is indeed “in contravention of a provision of this Constitution.” In other words, while a law which is inconsistent with the Constitution is automatically “void” and is of no effect, acts done under that law may not be automatically void.

Some may attempt to argue that this bifurcation is extremely fine and merely artificial. However, there are a number of substantial functional and practical reasons that may be advanced in support of the bifurcation. i.e. reasons why a law may be void while an act done under it would not be void without further steps. For example, a situation where innocent third parties have already acquired rights under the void law, those rights are not automatically extinguished merely because the law is declared void. This falls in line with the rule against destruction of accrued rights.

Further, the bifurcation also explains why lawyers always separate declaratory-reliefs from order-reliefs. Every lawyer knows (or, perhaps, ought to know) that seeking an order-relief requires a lot more consideration than declaratory-reliefs.  For example, one may seek a declaratory relief that Justice Cecilia Koranteng-Addow (may her soul rest in peace) right to life was violated. However, an order-relief which seeks to bring the perpetrators of the alleged violation to book or which seeks an award of compensation will, definitely, require more consideration (including a consideration of Section 35(2) of the Transitional Provisions, proof of next of kin, public policy, etc.) than the factors that are considered in granting the declaratory relief.

Finally, one may, upon a careful reading, also notice that this bifurcation lies at the heart of Article 2(2). Article 2(2) confers discretion on the Court to, notwithstanding whatever declaratory reliefs they have granted, “make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.” The million-cedi question, therefore, is: if everything done under a law is automatically void (by reason of unconstitutionality) and is of no effect, why, then, will the Constitution give some discretion to the Court to make such orders and give such directions as it may consider appropriate”?

This reasoning was sufficiently stated in the recent case of Dery v Tiger Eye (2016), where the Court, in considering “what consequences that flow from the violation of Article 146(8)” in that case, recalled its position in the Election Petition case (2013) that “it is not every violation of a constitutional provision which results in the annulment of the action.” In Dery, the Court went further to state that the consequences of unconstitutionality require more consideration than the declaration of the unconstitutionality itself. It says:

“Apart from legal considerations, there are also public policy considerations that support that general principle of law. It does not follow that a declaration that an action or inaction is unconstitutional has the effect of nullifying the action in question. The court must say it does have such an effect having regard to an express or implied provision of the Constitution or that it should have such effect in the spirit of a particular Constitutional provision, and proceed to give directions or make the appropriate consequential orders under Article 2(2) of the Constitution, 1992.”

Therefore, even though it is true that “all laws which are repugnant to the Constitution are null and void” (Marbury v. Madison, 1803.), it is equally true, even under American constitutional law, that “an unconstitutional statute is not necessarily a nullity as it may have indeterminate consequences binding on the people” (See: 16 Am. Jur. 2d., Sec. 257). Consequently, in Ghana, too, acts that are done under an unconstitutional law and their consequences are not always automatically and necessarily void as the law itself. So, like Prof Forsyth, I believe that public law acts are theoretically void but functionally voidable.

In part 2 of this article, I will attempt to assail the second pillar on which the auto view rests, namely that public law does not admit of the concept of ‘voidable.’

By Justice Srem-Sai, Lecturer, GIMPA Faculty of Law

OF JUDGES AND PUBLIC STATEMENTS AND PUBLIC COMMENT (PART 2)

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By Dr. Raymond Atuguba

This is the continuation of an earlier article published here.

Whilst dismissing the untrustworthy, deceitful, and opportunistic commentaries of these lawyers and social commentators, it is now necessary to return to our true enterprise: the exposition of the state of the law to ordinary Ghanaian citizens as best as we can. In an election year, it is important for the ordinary citizen to know the true legal effects of laws passed by Parliament, judgments issued by courts and tribunals, and Regulations and Administrative Instructions issued by the EC and other relevant administrative bodies.

Today, we would like to look at instances when a judge may comment on a pending or impending case. We will use the statements made by Justice Jones Dotse about the recent Abu Ramadan case as a point of reference for our learning. There are two aspects to the Justice Dotse Saga. The first is whether he should have spoken as and when as he did. The second is the meaning of what he said and its potential effect on the interpretation of the recent Abu Ramadan case. I have already dealt with this second aspect above.

The outstanding issue is whether Justice Dotse should have spoken and on the subject and to the audience that he did. Rule 2A of the Code of Conduct for Judges and Magistrates in Ghana, 2011, stipulates that a Judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Rule 3B (2) further states that “…A judge shall not be swayed by partisan interests, public clamor, or fear of criticism”.

The combined effect of these two Rules is that Justice Dotse should not have allowed the public clamor for an interpretation of the judgment or the public criticism of the judgment to entice him into making a Public Comment on the case. By making a Public Comment on the case, Justice Dotse has compromised public confidence in his capacity to sit on and determine any further suit by the parties in the recent Abu Ramadan case seeking an interpretation of the judgment.

The Code of Conduct further provides in Rule 5(B) that a judge may engage in “avocational activities”, that is “activities to improve the law, the legal system, and the administration of justice if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties”. These activities include speaking, writing, lecturing, appearing before a public inquiry, sitting as a commissioner in a public inquiry, etc.

So to the extent that Justice Dotse was at a workshop to orient judges on the legal procedures applicable to election disputes, he was very well within his remit as a judge to do so. Justice Dotse’s attendance at the workshop, his lecture(s) at the workshop, were all within the Rules and the law.

The Code of Conduct, however provides in Rule 3C (9) (at page 13) that: “Except as otherwise provided in the section, a judge shall abstain from public comment (my emphasis) about a pending or impending proceeding in any court…A case is impending for purposes of this section if it seems probable that a case will be filed”. Due to the fact that the plaintiffs in the Abu Ramadan case have said that they will return to the Supreme Court on this very matter, one can safely state that the case is “impending”.

It is necessary for us to understand the difference between what a judge may or may not say about a pending or impending case. The Code provides in the same Rule that “A judge is permitted to make public statements (my emphasis) in the course of his or her official duties or to explain for public information the procedure of the court, general legal principles, or what may be learned from the public record in a case. At the same time, the code provides that “A judge may not discuss the rationale for a decision, however, unless the judge is repeating what was already made part of the public record. Speaking to a journalist is public comment even where it is agreed that the statements are “off the record”.

This means that Justice Dotse was acting within the law if he explained the Abu Ramadan case to the judges and magistrates assembled for training. He was also within the law if he talked to them about the rationale for the decision in that case based on (and not outside of) the judgment and related material in the Abu Ramadan case, which judgment and material is part of the public record. These are “public statements” that are permitted by the Code of Conduct. However, Justice Dotse departed from the Code when he spoke to a journalist on an impending case. That is “public comment” and is proscribed by the Code of Conduct.

The effect of this breach is that Justice Dotse has to be sanctioned. For Rule 7 of the Code of Conduct provides that “Where a Judge commits a breach of any rule of this Code he shall be sanctioned with reference to the gravity of the act or omission constituting the breach in accordance with the Judicial Service Regulations.”

I have listened with incredulity at lawyers and social commentators arguing that Justice Dotse did no wrong. They argue that there is no difference between “public statement” and “public comment”. Every first year law student is taught that where a lawmaker uses two different words or expressions in the same document, they are presumed to express different things and to have different meanings. This principle is part of our rules of interpretation. Yet, we are hearing and reading lawyers say that “public statement” and “public comment”, as used in the Code of Conduct, must be presumed to mean the same thing. Ebei! A simple search on the internet will reveal that “Public Comment” is a term of art, whilst “public statement” is ordinary English Language. When lawyers and social commentators descend to this level of deliberate distortion and misinterpretation for their own ends, they do not serve the public interest and should cease to be taken seriously.

Public Statements by a judge on a pending or impending matter are permitted by the Code. Public Comment by a judge on a pending or impending matter is proscribed by the Code. Speaking to a journalist is Public Comment according to the Code and is, therefore, proscribed. It is as simple as that.

CONCLUSION

We need to be very careful when we do legal or constitutional analyses, because the soul of the Nation and the rights and responsibilities of our people depend on it. Rush analyses can lead everyone astray.

In conclusion, going forward, we expect our judges to engage in avocational activities, and to make public statements during such activities. This is what Justice Dotse did when he oriented other judges and magistrates on electoral laws and how they should interpret and apply them. Advancing the capacity of our judges and magistrates can only be a good thing and must be encouraged.

However, we do not expect our judges to make Public Comment on pending or impending matters, including speaking to journalists on such matters. This is all the more important in an election year where a section of the population can hang on the extra judicial Public Comment of a judge for nefarious purposes.

THANK YOU ALL FOR YOUR ATTENTION

Dr. Raymond Akongburo ATUGUBA is a Senior Lecturer at the University of Ghana School of Law and Team Leader at the LADA Group.

OF JUDGES AND PUBLIC STATEMENTS AND PUBLIC COMMENT (PART 1)

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By Dr. Raymond Akongburo ATUGUBA

INTRODUCTION

In my first article published last week, I promised to continue to provide you, my readers, with more down-to-earth interpretations of the “Law”. This is necessary because of legal jargon and the wilful misinterpretation of laws and judgments by lawyers and social commentators. Today, we will look at what judges are permitted to say and not to say about cases decided by the courts. I would, however, like to take us on a short journey into history, before we come to the crux of today’s legal lesson. This deviation is necessary if we are to know the lawyers and social commentators we are talking about by their historical fruit, their current fruit, and thereby project the character of the fruit they will bear in the future.

In order to reveal the fruit of these lawyers and social commentators, I will need to be very direct and forthright in this article, so forgive me in advance for my directness and forthrightness.

HISTORY REPEATS ITSELF

History is beautiful. And history matters. And history always repeats itself. It was actually 20 years ago, not 10 years ago, that I wrote the series of articles on the 1996 elections. And it was exactly 8 years ago that I wrote the article in the New Legon Observer, Vol. 2, No. 2 (2008) titled “To Comment or Not to Comment on Judgments of Courts of Law”.

The reaction from a section of lawyers (used here to include judges) and social commentators on this article and my discussion of it in the media was swift. As we say in Ghana, “they insulted me well well” for daring to say that everyone was entitled to comment on, even criticise a judgment of our courts. They lambasted me for arguing that lawyers and ordinary citizens may talk freely to the media in moderate criticism of the judgments of our courts. I repeated the same propositions in my lecture to the Ghana Bar Association Conference of that year and was essentially ostracised by a  section of lawyers as a result.

Today, those same lawyers and social commentators argue that a judge may sit on a case, rise up whilst the case is pending or impending, and make a Public Comment on the case, even to journalists. For clarity, a case is pending when it has not been disposed of by a court, and a case is impending when there is a high likelihood that it will come before a court. Matthew 7:16, “Ye shall know them by their fruits”.

Incidentally, these are the same lawyers and social commentators who, before the Anas exposé, insulted; made formal disciplinary complaints against; and without a hearing, illegally banned myself and others from practicing in the courts of law-all for daring to say that “no one can convince me that there is no corruption in the judiciary or that some judges do not take bribes”. After Anas, at least one social commentator shamelessly called in to many radio stations, insisting that the exposé has no relationship to what others and I had said four years earlier. Matthew 7:16, “Ye shall know them by their fruits”.

TO REMOVE OR NOT TO REMOVE THE NAME OF NHI CARD REGISTRANTS

Consistent with their opportunistic abhorrence for due process and the twisting of facts and reality, the same lawyers and social commentators are now calling for the removal of the names of “NHI card Registrants” from the Voters Register without Due Process and with disregard for the Rule of Law.

They say that there is no difference between “automatically removing names from a register” and “removing names from a register according to due process of law”. Without knowing it, what they are saying is that there should be no difference in the way dictatorial regimes ruled Ghana, and the way a constitutional democratic government should rule Ghana. Let’s watch it.

Automatic removal of the name of a registered voter, who lawfully and legally registered to vote, using an ID Card that the Supreme Court has confirmed was legal to use at the time she registered, is like a dictatorial government divesting citizens of their rights, in this case, the right to vote enshrined in Article 42 of our Constitution, without due process. This is why the Supreme Court, wisely, did not strike out those names from the register, as they are entitled to do, and did not order automatic deregistration, as they are entitled to do. The Supreme Court, on the contrary, held as follows on pages 22-23 of the judgment:

“As the registrations were made under a law that was then in force, they were made in good faith and the subsequent declaration of the unconstitutionality of the use of cards should not automatically (my emphasis) render them void. The legitimate way of treating them is to have them deleted by means of processes established under the law” (My Emphasis).

Removing names by due process, using the quasi-judicial methods outlined in the Public Elections (Registration of Voters) Regulations, 2016 (C.I. 91) and by the Supreme Court, is the democratic, constitutional and civilised way to go; unless we are already fed-up with the Rule of Law and Due Process and are longing and yearning for the return of dictatorial rule.

And whilst these lawyers and social commentators are busy calling for the automatic removal of names from the register without Due Process and contrary to the Rule of Law, and since they are so in love with automaticity, they may as well ask for the following:

  1. Automatic shutdown of social media without due process;
  2. Automatic throwing of people in jail by the Bureau of National Investigations (BNI) without Due Process; and
  3. Automatic deletion of SSNIT beneficiaries from the Pension list, who are suspected to be illegally present there.

THE SUPREME COURT DID NOT ORDER THAT ALL NAMES OF NHI REGISTRANTS BE AUTOMATICALLY DELETED FROM THE VOTERS REGISTER.

THE SUPREME COURT ASKED THAT THE ELECTORAL COMMISSION (EC) TAKES STEPS, REPEAT, TAKES STEPS, TO REMOVE UNDESIRABLE NAMES FROM THE VOTERS REGISTER.

THOSE STEPS ARE CALLED RULE OF LAW AND DUE PROCESS STEPS, IN ACCORDANCE WITH THE CONSTITUTION, C.I. 91 AND THE JUDGMENT OF THE COURTS.

THOSE QUASI-JUDICIAL STEPS ALLOW, FOR EXAMPLE, FOR A PERSON WHO IS MISTAKENLY TAGGED AS AN NHI CARD REGISTRANT, WHEN, IN FACT, SHE IS NOT, TO CHALLENGE AN ATTEMPT TO REMOVE HER NAME FROM THE REGISTER, A SCENARIO PROTECTIVE OF THE RIGHT TO VOTE. AGAIN, THOSE STEPS ALLOW FOR A PERSON WHO PREVIOUSLY, AND ACTING LEGALLY, REGISTERED TO VOTE WITH AN NHI CARD, AND WHO IS NOW DEREGISTERED, TO IMMEDIATELY REGISTER AGAIN WITH A VALID I.D. CARD OR OTHER MECHANISM ALLOWED BY LAW.

NOT EVEN THE SUPREME COURT CAN ORDER THE EC TO REMOVE THE NAMES OF VOTERS WHO VALIDLY REGISTERED TO VOTE, WITHOUT DUE PROCESS AND WITHOUT REGARD FOR THE RULE OF LAW. AGAIN, THE SUPREME COURT CANNOT ORDER THE REMOVAL OF NAMES FROM THE REGISTER IN A MANNER THAT DEPRIVES THEM OF THEIR CONSTITUTIONALLY PROTECTED RIGHT TO VOTE.

IF THE SUPREME COURT WERE TO DO THAT, SOME GHANAIANS MAY RESORT TO THE ECOWAS COURT OR THE AFRICAN COURT OR THE HUNDREDS OF MECHANISMS IN THE UNITED NATIONS SYSTEM, TO PUT PRESSURE ON GHANA TO DO THE RIGHT THING, PARTICULARLY SINCE GHANA HAS SIGNED AND RATIFIED THE CONVENTIONS RELATIVE TO THOSE BODIES WHICH PROTECT THE RIGHT TO VOTE.

THIS INTERPRETATION IS CONSISTENT WITH WHAT JUSTICE DOTSE IS REPORTED BY THE MEDIA TO HAVE SAID. HE IS REPORTED TO HAVE SAID THAT THE COURT ORDERED THE DELETION OF NHI REGISTRANTS FROM THE REGISTER IN ACCORDANCE WITH LAW, NOT AUTOMATICALLY.

THERE IS A WORLD OF DIFFERENCE BETWEEN DELETING THE NAMES OF “NHI REGISTRANTS” AUTOMATICALLY, AND DELETING THEM ACCORDING TO THE PROCEDURES LAID DOWN BY LAW. THE TWO HAVE VERY DIFFERENT LEGAL AND PRACTICAL EFFECTS. THE ONE DENIES THE RIGHT TO VOTE TO A SEGMENT OF THE POPULATION, AND THE OTHER IS PROTECTIVE OF THEIR RIGHT TO VOTE.

You may read the continuation of this article here.

Dr. Raymond Akongburo ATUGUBA is a Senior Lecturer at the University of Ghana School of Law and Team Leader at the LADA Group.